PROBATION ACT —A SOCIOLOGICAL APPRAISAL RAM AHUJA The Central...
PROBATION ACT —A SOCIOLOGICAL APPRAISAL
RAM AHUJA
The Central Probation Act operating in India since 1958 needs evaluation and amend-
ment in some of its provisions for widening its legal and operational scope. The provisions
that need to be examined pertain to the legal definition of probation, release without
supervision, social investigation of cases, appeal against trial courts, conditions of release,
duties of probation officers and the term of probation. Assessment of criminal legislation
has to be linked with new consciousness, critical philosophy and humane policies.
Dr. Ram Ahuja is Professor of Sociology, University of Rajasthan, Jaipur.
Of the few fields in which close working prehensively examined and if need be, some
cooperation and coordination of law-
of its provisions be amended.
framers, law enforcement agencies and aca-
This paper does not debate the question
demicians is needed, the field of crime of probation versus imprisonment because
and deviancy is a significant one. But these it assumes that for certain types of offen-
groups are so greatly atomised today that ders, community correction is more effec-
each considers other's work as intrusion in tive than custodial imprisonment. Knowing
its specialism. Each group embodies its the detrimental effects of institutionalisation,
own epistemology and ontology, its own the criminologists always advocate for the
way of thinking and its own assumptions expanded use of probation services both
about reality. Judicial and police officials for juvenile and adult offenders. There is
condemn the views and reject the research no doubt that many of the common human
findings of sociologists as academic huffings situations leading to deviant behaviour will
and puffings and sociological gimcrackery. always be with us and many people would
Against this, most criminologists regard succumb to these situations; but all these
judiciary's philosophy as unrealistic and people need not be condemned to nega-
police attitude toward crimes and criminals tive sanctions through confinement to penal
as one that contaminates the society. These institutions. That is why criminologists
ideological gaps among correctional resear-
with an advance knowledge of humani-
chers, practioners and administrators have tarian penology do not recommend impri-
to be bridged, and all groups have to be sonment for all wrongdoers but insist on
bound by an oppressive reality, if rational giving the benefit of release on probation.
socio-political and legal order is to be The central problem of this paper is to
established in the contemporary society. analyse and evaluate the various provisions
Since law enforcement officials have to in the Central Probation Act of 1958 and
operate under legislative regulation and are ascertain the need for some alterations in
distinctly limited in what they can under-
the Act for changing its legal and opera-
take, official, legal ideology must be evaluat-
tional scope.
ed from time to time. It is high time that
all correctional systems, particularly the Change in Concept
probation system which has been operating
in many states in our country for the last
The first contention is that it is now
eighteen years, and in some states even necessary to change the underlying philo-
longer, and which is regarded as a system sophy and the legal definition of 'proba-
that is generally effective in producing posi-
tion'. Sub-section 4 of Section 4 of the
tive effects on deviants, should be com-
Probation Act provides for releasing the

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RAM AHUJA
offender on his entering into a bond to threat of punishment for original offence is
appear and receive sentence when called to give the probationer another chance to
upon by the court for violating the proba-
imporve his behaviour in the society and
tion conditions. Section 9 of the Act refers escape commitment and its stigma is not
to the procedure to be adopted for dealing very sound because "prescribing conditions"
with the offenders failing to observe the on which the offender is placed on proba-
conditions of the bond. According to this tion is in itself a punishment since he looses
procedure, if the probationer fails to observe his liberty. The effectiveness of treatment
any of the conditions of the bond, the in probation system being based on the
court may either issue warrants or summons concept of manipulation of the offender
requiring him to attend the court on a fixed into good behaviour by the use of psycho-
day. When he appears, the court may sociological devices, the need for removing
remand him to custody until the case is the "threat of punishment" is very essential
concluded or may grant him bail. On hear-
to make probation a more effective treat-
ing the case, it may sentence him for the ment system.
original offence or impose penalty of not
There are certain kinds of criminal acts
exceeding Rs. 50/- and if he fails to pay which no amount of law-making or preven-
the fine, the court may sentence him for tive action can fully eliminate. Likewise,
(he original offence. This shows that pro-
no serious action is desired against all
bation is legally viewed as "suspension of criminals. A substantial shifting of our
sentence" or "postponing punishment." This policy is needed for misdemeanants whose
author's contention is that, instead of crime is not the result of inherent crimina-
viewing probation as suspended sentence, listic tendencies, and who do not appear
it should be considered as a "substitute of to threaten the societal norms or consensus.
imprisonment". When probation is so In dealing with such offenders, our policy
viewed, the probationer will not have to needs a certain amount of modification to
face the threat of punishment by the court permit greater flexibility in personal
for the original offence for which imposition dealings. The obvious case in point here
of punishment was temporarily deferred but is dealing with the probationers whose
has only to bear the threat of punishment offences are unfortunate slips and not very
by the probation officer for the breach of harmful to the society. The flexibility with
probation conditions. After the release probationers is possible only when the
from the custodial institution, when a probation officers are given more powers.
person commits a new offence, he is recon-
In the present structure of the probation
victed for his new offence and not for the services, the possibility of this flexibility is
first one for which he has already under-
the minimum. A rational crime policy
gone the penalty. If within the prison, the would require us to rethink as to what is
prisoner violates the prison rules, he is intended to be accomplished by employing
dealt with by the prison officials for this "conditional release" as a means of social
violation and not by the court. The same control. If probation is not a punitive
pattern should be adopted in the proba-
measure but reformative process, why
tion services too. Instead of reporting the should a permanent threat be put over the
violation of the conditions of probation to head of the probationer of sending him
the courts, the probation officer should back to the court? Why should probation
himself be authorised to deal with such be an instrument of the court? Section 4
cases of violation. The legal argument that of the Probation Act lays down the object

PROBATION ACT —A SOCIOLOGICAL APPRAISAL
203
of the Act as preventing the turning of ploy his capacities for achieving his goals
youthful offenders into criminals by their without being in serious conflict with the
association with habitual and hardened interests of other persons and the society.
criminals of mature age within the walls Here there is probably an assumption that
of a prison. If this is the feeling at the time earlier the person was not assisted by his
of imposing sentence on the offender, why parents, kith and kin and peers, etc., in
should this feeling be forgotten when a developing this will. This assumption is
probationer is found violating one or more surely not correct. All offenders do not
conditions of the bond? It could, therefore, commit crimes only because of socialization
be maintained that the object of Probation defects. Many indulge in deviant acts due
Act would be achieved only by changing to the force of circumstances. But assum-
the legal definition of "probation" and ing that offender's crime was because of
modifying sections 4 and 9 of the Act.
lack of proper counselling, could it be said
that the probation officer will definitely
Supervision
give him the required counsel, supervision
Our other concern is with Sub-Section 3 and guidance? Are all probation officers
of Section 4 of the Act regarding placing adequately trained to be counsellors and
the probationers on supervision and the committed to their occupational roles?
suggestions of some Probation Officers that Assuming that they are, is it not known that
no offender be placed on probation without with the present case — load a probation
supervision and that section 4 of the Pro-
officer hardly gets about two hours or less
bation Act be amended. The above referred per month of personal counselling time
subsection provides that the court may pass with each client? Could it be definitely
orders for the supervision of the offender contended that according to the provisions
by a probation officer in the interest of the of the Act, all Probation Officers regularly
offender and public, i.e.. all probationers visit the probationers in their home
need not be kept under probation officers' surroundings, and where appropriate,
supervision. Some probation officers hold their occupational environment, in order
the view that probation not involving super-
to see that the progress made by the pro-
vision is no probation at all and as such all bationers and the difficulties if any are
probationers must be placed under the met with by them satisfactorily? The
supervision. The crucial questions about standard probation case-load of a probation
supervision are: (i) How much supervision officer in India is between 120 and 140 in
do offenders on probation now receive, and comparison to 50 and 60 in England and
how much do they need? (2) What are the 80 and 90 in the United States. In several
techniques of supervision now in use and states in India, the position is much worse:
what effects have they on different types of the probation officers supervise much
probationers? These questions must be great numbers. The number of probation
answered before we are in a position to say cases under supervision at any one time is
that it is probation with supervision rather not, however, an accurate measure of the
than probation without supervision which probation officer's work-load since he has
is responsible for the apparently high effec-
also to perform another important duty of
tiveness of the probation.
pre-sentence investigation of offenders'
The fundamental purpose of the super-
social background and submit report to the
vision is to help the offender in creating court. In terms of the time spent, one such
within himself the will and ability to em-
inquiry is often equal to the supervision

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RAM AHUJA
of five offenders on probation. Moreover, secondary groups is increasing day by day
the administrative duties of the probation for the satisfaction and fulfilment of his
officers have also increased in recent years. varied needs, the traditional agencies of
The result is that in many cases, the socialisation often find themselves hard put
supervision of offenders on probation to maintain an influence on the young. At
occupies only a minority of the probation the same time, there is some confusion as
officer's time. A probation officer, with an to what is desirable and what is undesirable,
active case-load of 150, thus spends very which are the crime-encouraging values and
little time per case per month; and, in which are the crime-preventive values. In
many cases, the amount of contact between such a situation, to have a right attitude
probationer and probation officer is the towards the violators of the so-called
minimal.
social values and recommend the regular
It is true that all probationers do not visits of the probationers to the probation
require equal attention and that some need officers' office at fixed intervals and
much more supervision than others. function under their guidance for a period
Nevertheless, keeping in mind the inten-
of not less than one year would definitely
sive', 'ideal', 'normal' and 'minimum' have deleterious effects on the probationers'
supervision needed by the probationers, efforts of adjusting themselves in the society.
the success of the probation and the From all this it appears that the majority
development of non-criminal orientations of the probationers could be dealt with
can easily be attributed to 'intensive' effectively by measures not involving
supervision only. Without normal or supervision. Some offenders definitely are
even minimum supervision, the probation able to benefit more from supervision but
officer cannot act as a proper guide and the majority probably do not need it. In
counsellor for the probationer. Assuming particular, offenders who are good risks
that he does, it is known that the probation can well be dealt with by probation without
officer is supposed to secure for the supervision. Let us, therefore, not indulge
probationer the training facilities, the in overlegislating because it has its own
employment opportunities and the financial perils. Seen from an operational point of
aid. In the present circumstances, is the view, probation has to be quite different
probation officer really able to get him a from its ideal conception. Sub-section 3
job? Can he give him the financial of section 4, thus, does not need any
assistance? Those people who suggest that amendment.
no offenders be released on probation
without supervision are in fact advocates Social Investigation
of 'get tough' approach to crime. These
advocates seem to forget that overzealous
The third point pertains to social
enforcement methods could well signal a investigation. According to the existing
serious curtailment of the individual provisions of the Probation Act, it is not
liberties that we so highly prize. This is mandatory for the court to send each case
not to express sympathy for an offender for social investigation to the Probation
but simply to restate what should be a Officer before releasing the offender on
governing tenet of democratic justice. In a probation. The Act maintains that the court
complex, heterogeneous, rapidly changing, may call for a report from a probation
urbanised and largely individualistic
officer regarding the character of the
society in which individual's dependence on accused. Sub-section 3 of section 4 and sub-

PROBATION ACT — A SOCIOLOGICAL APPRAISAL
205
section 2 of section 6 provide for court's difficult to solve. The argument that the
taking the Probation Officer's report into probation officer may not be completely
consideration , if there is any, before it objective and impartial in conducting the
makes an order for release on probation. investigation and in writing the pre-sentence
In this connection, we assert that social report is irrational and ludicrous because
investigation in all those cases should be the same argument can be applied to the
made mandatory where the judges plan to possibility of the non-objectivity of the
release offenders on probation with or judges too. Similarly, the fear that the
without supervision. According to the probation officer may write the report
present Probation Act, the probation officer without going to the field and meeting the
has to report to the court (i) the character parents, relatives, neighbours and friends
and personality of the offender (ii) the etc., of the offender, merely points out the
circumstances in which the offender is living defect in the process of selecting the pro-
(iii) his problems and needs (iv) his rela-
bation officers and not in the importance
tionships with people (v) factors that of the pre-sentence investigation report. As
underlie his specific offences and (vi) such such, an amendment in sub-section 2 of
other matters as may, in the opinion of sections 4 and 6 for compulsory pre-sentence
the probation officer, require to be taken investigation and asking for the probation
into consideration by the court before officer's recommendation regarding proba-
making the probation order. This clearly tion or commitment is necessary and highly
points out the use of the pre-sentence desirable and should be regarded as an
investigation report to determine a treat-
idealistic measure.
ment plan. The diagnostic report is not to
assist the judiciary in assessing whether a
person accused of committing the crime is An Appeal against Trial Court by the
to be actually convicted for that crime or Probation Officer
not. This is evident from the fact that
probation officer's sealed report is opened
Let us now take up sections 4 and 6 of
by the magistrate only after the offender the Probation Act regarding the release of
is found guilty, to know the character of certain offenders, particularly juvenile and
the offender before making an order of adolescent delinquents on probation along
release. For utilising probation wisely, it with section 14 of the duties of the
is essential for a conscientious judge to probation officers. Sub-section 1 of section
have at the time of sentence of the offender 6 imposes restrictions on imprisonment of
complete, accurate, reliable and confidential offenders under 21 years of age, guilty of
information on which to base his decision. an offence not punishable with life
For a judge to merely guess whether the imprisonment and necessarily releasing
offender should be sent to the jail or placed them on probation unless the court feels
on probation with or without supervision that the case is not within the purview of
is almost as futile as to expect a doctor to release on probation or such release will
prescribe medicine without getting details not be in the interest of justice. In spite
of the disease from the patient. True, it of this provision, it is well known that all
may be pointed out that there are not offenders — adults and juveniles —
"enough probation officers and that their eligible to be released on probation are not
ease-loads are too high. But these are the actually so released by the courts. Judges
administrative problems which are not use probation much less frequently than

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RAM AHUJA
imprisonment when sentencing offenders. court, the probation officer remains only a
Evidence clearly indicates that our courts passive observer in trial proceedings when
consider the type of offence and not the he ought to be very active because of his
personality of the offender in assessing the knowledge of offender's background. It
risk and imposing sentences. A few years could, therefore, be emphasised that it
ago, this author had an opportunity of should be the probation officer's main
collecting data pertaining to convictions responsibility to get that offender released
from some courts in two districts of on probation whose case he has investigated
Rajasthan. The collected information so thoroughly that he really feels the need
revealed that out of 1,836 persons tried by of his release on probation. By this, no
four courts in the two districts, 55.3 per change is being suggested in any section
cent were acquitted and 44.7 per cent (or of the Act but only the need of taking
820 persons) were actually convicted. Out section 11 of the Act more seriously by the
of 820 convicted offenders, 71 per cent probation officers is being emphasised.
were sent to prisons, 14 per cent fined, 6
per cent committed to sessions, 3 per cent Conditions of Release
released after admonition, 4 per cent given
probation without supervision and 2 per
The other problem for analysis is the
cent placed on probation with supervision. conditions of release as provided in the
It is really strange that our judiciary has bond under section 4 of the Probation Act.
not shifted from the age-old purely In this connection, it could be submitted
legalistic attitude to lego-sociological
that some of the conditions provided in the
attitude in initiating trials and more bond are extremely superfluous. For
liberally using probational treatment. There example, take the conditions of dissociation
is a provision in the Probation Act for with persons of bad character, abstention
making an appeal against the trial court. from intoxicants, abstention from anti-
It is not only the convicted person and social acts, not committing any offence
the prosecution who can file appeal against punishable by law and endeavouring to earn
court's decision of declining to deal with an honest livelihood. In fact, these are the
the offender under sections 3, 4 and 6 of behaviour patterns which are expected of
the Probation Act and passing the sentence all law-abiding citizens in any society.
of imprisonment against him, but even the When an offender is released on probation,
Probation Officer has been conferred power the basic assumption is that he is being
by the legislature to feel aggrieved with given one more opportunity to become a
regard to the propriety of the imprisonment law-abiding citizen. When every citizen is
order passed by the trial court and move expected to abstain from anti-social
the court by way of an appeal against the acts, when every citizen has to earn money
correctional treatment. But, how many by honest means, why these conditions be
such appeals have been made in the last specifically mentioned in the bond,
15 years? It is surprising that about four particularly because even without specifying
lakh offenders are imprisoned and only them, the offender can be penalised for
35,000 — 40,000 are released on probation them. What is needed is that only those
every year in our country when more than conditions be prescribed which have a direct
60 per cent offenders are eligible for effect on the criminal value system of the
probational release. At present, after sub-
probationer, which may enable the proba-
mitting the investigation report to the tion officer to manipulate both the formal

PROBATION ACT — A SOCIOLOGICAL APPRAISAL
207
and the informal institutional and group the probation officers, and it would save
environment in which the probationer is to them from the cumbersome practice of
live during the probation period, and which approaching the courts through their
are appropriate for individualised treatment Chiefs and Directors. Convincing the
of the probationer.
courts for revoking or reducing the
probation term is not so easy today since
Indeterminate Term
it has already been pointed out that the
present judiciary continues to be committed
The last point deals with sub-sections 1 to the old concepts of free will and hedon-
and 3 of Section 4 of the Probation Act ism in the causation of crime and believes
which provides for prescribing the fixed in protecting the interests of only society
period of probation and supervision by the rather than those of both society and the
court, ranging from one to three years. Sub-
criminals. Knowing, therefore, that proba-
section 1 says that the offender be released tion officers are definitely more concerned
on probation of good conduct for a period with the criminals' welfare, it is suggested
not exceeding three years and sub-section 3 that sub-sections and sections pertaining
says that he be kept under supervision for to the term of probation be amended and
a period of not less than one year. In this the policy of indeterminate term be
connection, it may be submitted that these introduced in this country.
provisions need a radical change. What is
To conclude, it may be reiterated that we
being suggested in their place is the system should be more pragmatic and rational in
of indeterminate term which provides for making modifications in the various
fixing the minimum and the maximum sections of the Probation Act. Only a
period of probation by the court, the exact critical philosophy and a new consciousness
period being determined by only a Proba-
should be the basis of assessment, evalua-
tion Board or a Committee. It may be tion and amendment. The recourse to
argued that sub-section 1 of section 8 negative sanctions must be taken in as
of the Probation Act provides for rational a manner as possible. We should
variation of probation conditions, i.e. if a have sane and humane crime policies and
probation officer feels that the probationer greater caution should be exercised in
need not necessarily be kept under super-
resorting to criminal legislation. The goal
vision any longer, he can request the court of "protecting the community" — admittedly
for discharging the bond. It is also known a commendable one — must not serve as
that in several cases in India, the probation an excuse to ignore and deny the legitimate
terms have been reduced on the appeals and substantive rights of the criminals as
of the probation officers. But the con-
individuals. The newer approaches re-
tention here is, why should this power of presented by casework and its socio-
reducing the term be given to courts only? psychoanalytic foundations have to find
If indeterminate term system is accepted, unanimous approval of legislators,
this power will automatically be enjoyed by administrators and scholars.